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Jornada del Muerto Grant

by J. J. Bowden

Until the advent of the automobile, travelers using the Camino Real between El Paso del Norte and Santa Fe faced the torturous trip through the dreaded Jornada del Muerto with a great deal of awe and hesitancy. The Jornada del Muerto, one of the true deserts in the United States, is a wide, barren valley extending from Socorro County into Dona Ana County, a distance of 125 miles. The desert derives its name from the ninety‑mile portion of the Camino Real lying between the Roblero and Fray Cristobal Campsites. This portion of the celebrated communication line was blazed in 1598 by Onate. The Camino Real north of El Paso del Norte generally followed the east bank of the Rio Grande River, but on this particular stretch of the road the Caballo and Fray Cristobal Mountains approached so close to the river that it was impossible to pass between them. Consequently, the trail was forced to run east of the mountains in the arid wastelands. There were only three springs along this portion of the road, which were not always dependable, and not a stick of wood The constant danger of an attack by hostile Indians, who roamed the desert, increased the perils of a journey across the Jornada del Muerto. Every mile of this portion of the Camino Real has been wet with tears and stained with the blood of its more unfortunate travelers. In the early days it was bordered by crosses, marking the graves of those who met tragic and untimely deaths upon this dreary stretch of the only trail connecting the northern frontier with the interior of Mexico. The Cruz de Aleman, Cruz de Analla and Cruz de Roblero campsites took their names from the grave sites of the famous persons who were buried nearby. In view of the horrors occasioned in crossing the desert, it is little wonder that it received the ominous name “journey of death.”

It generally took six days for a wagon train to traverse the Jornada del Muerto. Like much of the arid southwest, the Jornada del Muerto was considered waterless because no water was found on the surface. For countless years travelers crossed the Jornada del Muerto without taking the trouble to dig beneath the surface of the plain for the precious moisture they so often direly needed.[1]

In order to mitigate the discomforts of travel through the Jornada del Muerto, Juan Bautista Vigil Alarid, Antonio Jose Rivera and Michael Houck petitioned Governor Manuel Armijo on December 28, 1845, asking for a grant covering the major portion of the desert. As consideration for the grant, the petitioners offered to dig two water wells at strategic locations along the Camino Real for the relief and aid of travelers, and to construct a factory at each well. The petitioners also offered to employ convict labor in the operation of the factories, They stated that they would establish a garrison at each settlement, to repel Indian attacks upon the settlement and escort travelers using the Camino Real. The petitioners agreed to complete the construction of the improvements in the shortest time possible, but in no event more than five years after the issuance of the grant. The requested lands were described as being bounded on the north by the table land known as Mesilla de Contadero; on the east by the Sandia Mountains; on the south by the old site of Dona Ana at Roblero; and on the west by the Rio Grande.[2]

Armijo referred the petition to the Departmental Assembly, recommending that the grant be made if the propositions made by the applicants in the form of conditions were deemed to be of sufficient benefit to the country, lie also called the Assembly’s attention to the nature of these conditions, which at that time would have been a novel undertaking. The Departmental Assembly appointed a committee to investigate the proposal. The Committee reported that the lands which had been requested were located in the heart of the Apache country, and that the danger of Indian insurrections would undoubtedly prevent the applicants from constructing the improvements mentioned in their petition, It also called attention to the fact that Michael Houck was a foreigner, and that the Law of March 11, 1842,[3] prohibited foreigners from acquiring land within the frontier departments without the consent of the Supreme Government. The Committee concluded its report by recommending that the grant be made to Vigil and Rivera without reference to the conditions contained in the petition.[4]

On January 10, 1846, the Departmental Assembly proceeded to grant the lands to Rivera and Vigil. The Departmental Assembly’s decree stated that the concession was made for the purpose of digging wells and cultivating the land, as far as the recipients means would permit The only restriction contained in the grant was the reservation of the right for travelers using the Camino Real to graze their livestock on the lands adjoining the trail. Michael Houck was also specifically excluded from participating in the grant. Armijo in turn directed the Acting Secretary of the Assembly, Nicolas Quintana, to order the Alcalde of Santa Fe to place the grantees in possession of the grant. Pursuant to this decree, Quintana, on February 4, 1846, ordered Jose Albino Chacon, the Alcalde of Santa Fe, to deliver legal possession of the premises to the two grantees. Quintana’s order also provided that if Houck should present proper naturalization papers he, too, whould (sic) be entitled to receive an equal share in the grant. Pursuant to the Secretary’s orders, Justice Chancon placed Vigil and Rivera in possession of the land on March 5, 1846.[5]

The Jornada del Muerto Grant conflicted with a portion of the Pedro Armendaris Grants. When the Jornada del Muerto Grant was originally made, it was thought that Armendaris had abandoned his lands, However, on April 25, 1846, Armendaris asserted his claim and protested the recognition of the Jornada del Muerto Grant, insofar as it conflicted with his lands.[6] An undated and unsigned memorandum was then issued, forbidding the grantees of the Jornada del Muerto Grant from digging the wells and constructing other facilities specified in the grant until all problems concerning the Armendaris Grants had been settled. The memorandum further stated that the five‑year period specified for the fulfillment of the conditions contained in the grant was not to commence until after a suit pending between Manuel Armendaris and the heirs of Francisco Xavier Chaves was finally decided. This suit would also determine the northern boundary of the Jornada del Muerto Grant.[7]

Before any further action was taken in connection with the grant, war broke out between the United States and Mexico. Armijo retreated to Chihuahua just before General Stephen Watts Kearny and his victorious forces entered Santa Fe on August 18, 1846. After Armijo fled New Mexico, Lieutenant Governor Juan B. Vigil assumed the duties of Acting Governor. Kearny, in his Proclamation of August 22, 1846, took possession of the Mexican Department of New Mexico and annexed it to the United States as the Territory of New Mexico. Kearny’s Proclamation also provided that all Mexican civil officials, who took the oath of allegiance to the United States, were to retain their offices until their successors could be duly elected.[8] Kearny further pledged that all valid New Mexican property rights would be recognized by the United States. In order to ascertain the basis and extent of private land claims in New Mexico, Kearny ordered the claimants of Spanish and Mexican land grants to produce and register their title papers. The claimants of the Jornada del Muerto Grant promptly filed their claim in conformance with Kearny’s order.[9]

Shortly after the change of sovereignty was completed, Houck took steps to secure his interest in the grant by complying with the terms of Quintana’s Order of February 4, 1846. He filed a copy of his Mexican naturalization papers with Alcalde Chacon.[10] These papers disclosed that Houck had become a naturalized Mexican citizen on August 18, 1832. Chacon issued a decree on September 16, 1846, in which he declared that Houck had satisfied the Governor’s require­ments, and was, therefore, legally a co‑owner of an undivided one‑third interest in the Jornada del Muerto Grant.[11]

With a view of obtaining the recognition of the Jor­nada del Muerto Grant by the United States under the provi­sions of the Act of July 22, 1854,[12] its claimants filed a petition and their title papers with the Surveyor General of New Mexico, William Pelham, on the 23rd day of May, 1859. In their petition, they requested that all the lands embraced within the boundaries of the grant be confirmed into them. Due to the immense size of the grant, it naturally was one of the most important land claims filed in the Surveyor General’s Office for adjudication. A large portion of its nearly two and a half million acres had been previously surveyed by the United States and was ready to be opened to the public for settlement or sale Pelham, therefore, gave the grant his most careful attention and close examination. After he had completed his investigation pertaining to the validity of the grant, Pelham was fully satisfied that the title papers were authentic and genuine.  However, in his Report to Congress dated August 31, 1859, Pelham held that the alleged order suspending the construction of the wells and factories on the grant was apparently issued by Acting Governor Vigil to himself as one of the grantees of the grant. Continuing, the Surveyor General noted that during this period the laws of Mexico had been declared to be in full force and effect in New Mexico, except when they conflicted with the Constitution or Laws of the United States. He conceded that, under Mexican law, the Governor had authority to suspend conditions contained in a conditional grants. However, he pointed out that once the United States extended its jurisdiction over the area, such suspensions by the Territorial Governor were void, for only Congress could alter the compliance of conditions regarding the severance of land from the public domain, Pelham, therefore, recommended that the grant be rejected, primarily on the grounds that the petitioners had wholly and completely failed to perform the conditions and obligations specified in the original grant, and, thus, was invalid as a claim against the United States.[13] The Jor­nada del Muerto Grant was the first private land claim in New Mexico to be rejected by the Surveyor General.

Being dissatisfied with the adverse findings contained in the Surveyor General’s Report, the claimants of the grant applied to the United States Congress for relief on July 26, 1859 Upon investigating the merits of the Jornada del Muerto claim, Congress decided that the complex legal controversies raised by the interested parties could best be settled in a judicial tribunal. Congress referred the problem of determining the validity of the grant to the judiciary department by enacting Section 5 of the Act of June 21, l860,[14] which authorized the claimants of the grant to institute suit against the United States in the Supreme Court of the Territory.

In order to avoid any opposition from Pedro Armendaris, the claimants of the grant voluntarily abandoned their claim to any lands contained within the limits of the two Spanish land grants owned by Armendaris. After the Armendaris dispute had been settled amicably, the claimants instituted suit against the United States in the Territorial Supreme Court for the recognition of the balance of the land contained in the grant.[15]

During the trial of the case, the plaintiffs vigorously assailed the Government’s contention that the grant was invalid. The Government, on the other hand, took the position that the plaintiffs had not performed the conditions precedent which represented the sole consideration for the issuance of the grant. The plaintiffs responded that if the grant was encumbered with any conditions, they were conditions subsequent, and the performance thereof was not a prerequisite for the securing of a vested right to the land. In the alternative, the plaintiffs averred that the change of sovereignty prior to the expiration of the period specified for the fulfillment of the conditions rendered their performance unnecessary. They further argued that after the United States had acquired jurisdiction over the land, an order had been issued by the American authorities, stopping the plaintiffs from complying with such conditions A judgment was rendered by the Supreme Court of New Mexico on January 25, 1867, confirming the plaintiffs’ claim to all the land embraced within the grant, except for the land which they had abandoned due to the conflict with the Armendaris grants.[16]

The Act of June 21, 1860, granted either of the interested parties the right to appeal within one year the decision of the Supreme Court of the Territory of New Mexico to the Supreme Court of the United States, Immediately after the New Mexico Court announced its decision, the United States Attorney, orally and in open court, appealed the decision. However, the Clerk failed to make an entry in the courts minutes showing that the appeal had been requested and granted. The oversight was not discovered until January 4, 1869, when the Government obtained a transcript of the case. In order to rectify the mistake, the Court ordered that the notice and granting of the appeal should be entered into its minutes nunc pro tunc The claimants of the grant filed a motion in the United States Supreme Court, requesting that the appeal be dismissed on the grounds that it had not been taken in time, The Supreme Court of the United States denied the motion, and held that the appeal had been duly perfected.[17]

The United States argued that the only laws in force in the Territories of Mexico authorizing the disposition of the public domain, with the exception of those relating to missions and towns, was the Act of 1824, and the Regulations of 1828, The purpose of the Congress in enacting that law, and the supreme government in carrying it into effect, was to colonize the public lands, The public domain was, therefore, preserved for settlement or cultivation, The officials of New Mexico had no authority to sell the public lands, to convey them for past services, nor to grant them on conditions of making public improvements for the use and benefit of the travelling community and general welfare of the department. The power to cede any public lands located within the territories for purposes other than settlement and cultivation had been reserved by the Supreme Government. Continuing, the Government stated that the grant was also invalid on the ground that it was made contrary to the form prescribed in the Regulations of November 21, 1828.[18] Under the Regulations, the grant should have been made by the Governor, with the approval of the Departmental Assembly. In this grant, the prescribed order was reversed. The most that could be claimed was that the grant had been made by the Assembly, with the approval of the Governor, The Government also asserted that the grant violated the provision of the Act of 1824, which limited the size of a grant made under that Act to eleven leagues.

In its decision dated March 4, 1872, the United States Supreme Court held that the claim to the Jornada del Muerto Grant had no foundation. The Court held that the action of the Assembly with the consent of the Governor, usurped the prerogative of the Supreme Government, and no ingenuity of reasoning could sanction the proceedings which were not only without authority of law, but contrary to the forms prescribed by it. The Court, therefore, reversed the judgment of the New Mexico Supreme Court, and ordered the petition dismissed. In passing on the question of the excessive acreage contained within the grant, the Court, in its dicta, held that it should consider the Mexican customs respecting land grants, in addition to its laws, In New Mexico it was customary to grant all the land embraced within the boundaries of well‑known natural landmarks without regard to quantity. The Court stated that the Government had no right to reduce or destroy grants merely because it was found that they contained excessive acreage in violation of the Colonization Law of April 18, 1824.[19] This decision[20] dashed all hopes of securing the recognition of the Jornada del Muerto Grant.

It would indeed be interesting to know why the claimants of the grant fought so vigorously for its confirmation, Except for purposes of speculation, this immense tract of desert land had little potential value. In 1865, during the trial of the case in the New Mexico Supreme Court, R. H, Tompkins testified that the grant had no cash value. He stated that Vigil had offered him a portion of The grant to assist him in the prosecution of the claim, but that he had refused the offer. He advised Vigil that he would not prosecute the claim for all of the grant,

The improvement of techniques for the conversion of arid lands into fertile fields by irrigation with deep water wells offers a brighter future for the Jornada del Muerto area. It is indeed paradoxical that the scheme which was originally proposed by Vigil and his associates may offer the key for the quenching of the deserts thirst and the future development of that barren waste.

[1] Keyes, Geology and Underground Water Conditions of the Jornada del Muerto, New Mexico, 10 (1905); and Wislizenus, Memoir of a Tour to Northern Mexico 38‑39 (1848).

[2] H.R. Exec, Doc No 14, 36th Cong, 1st Sess, 99‑100 (1860).

[3] Reynolds, Spanish and Mexican Land Laws 240 (1895).

[4] Vigil v. United States, No 10 (Mss., Records of the Clerk of the Supreme Court, Santa Fe, New Mexico). This case has never been reported.

[5] H.R. Exec, Doc. No. 14, 36th Cong., 1st Sess., 100 (1860).

[6] Archive No. 1217 (Mss., Records of the A.N.M.).

[7] H.R. Exec, Doc. No. 14, 36th Cong., 1st Sess., 103 (1860).

[8] Read, Illustrated History of New Mexico 437‑438 (1912).                                    

[9] Record of Land Titles 13‑15 (Mss., Records of the S.G.N.M.).

[10] Chacon had previously taken the oath of allegiance to the United States and was, therefore, qualified to retain his office as Alcalde under the American military government.

[11] H.R. Exec, Doc No. 14, 36th Cong, 1st Sess, 103 (1860).

[12] An Act to Establish the office or Surveyor General of New Mexico, Kansas, and Nebraska, to grant donations to actual settlers therein, and for other purposes, Chap. 103, 10 Stat. 308 (1854).

[13] The Jornada del Muerto Grant, No.. 26 (Mss, Records of the S.G.N.M.).

[14] An Act to Confirm Certain Private Land Claims in the Territory of New Mexico, Chaps 167, Sec 5, 12 Stat. 71 (1860).

[15] Vigil v. United States, No. 10 (Mss., Records of the Clerk of the Supreme Court, Santa Fe, New Mexico).

[16] 1 Minute Book 420‑421 (Mss, Records of the Clerk of the Supreme Court, Santa Fe, New Mexico).

[17] United States v. The Heirs of Vigil, 10 Wall, (77 US,) 423 (1870).

[18] Reynolds, Spanish and Mexican Land Laws, 141 (1895).

[19] Ibid., 121.

[20] United States v. Vigil, 13 Wall. (80 U.S.) 449 (1872).